Citation Nr: 9928933
Decision Date: 10/06/99 Archive Date: 10/15/99
DOCKET NO. 98-18 627 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
INTRODUCTION
The veteran served on active duty from February 1989 to May
1993.
This matter comes before the Board of Veterans' Appeals
(Board) from an October 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi, which denied a permanent and total
disability rating for pension purposes.
FINDING OF FACT
The veteran has qualifying wartime service, has completed the
VA pension application as to his income, and may have the
requisite total disability rating when all of his nonservice-
connected disabilities are properly evaluated, and as to
unemployability there is plausible evidence of record that he
has recently been involuntarily hospitalized due to his
mental health problems.
CONCLUSION OF LAW
The veteran's claim for entitlement to a permanent and total
disability rating for pension purposes is well-grounded.
38 U.S.C.A. § 5107(a) (1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board finds after a preliminary review of the evidence of
record, that the veteran has satisfied the evidentiary
requirements for a well-grounded claim as set forth by the
United States Court of Appeals for Veterans Claims (Court) in
Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999).
Specifically, the evidence shows that the veteran has
qualifying wartime service; that he completed the VA pension
application as to his income; that he may have the requisite
total disability rating when all of his non-service-connected
disabilities are properly evaluated, and as to
unemployability there is plausible evidence of record that he
was recently involuntarily committed by a civil Court for
inpatient psychiatric treatment. See 38 U.S.C.A. §§ 1502,
1521; 38 C.F.R. § 3.321 (1998).
ORDER
The veteran's claim for a permanent and total disability
rating for pension purposes is wellgrounded.
REMAND
Pension is payable to a veteran who has served for 90 days or
more during a period of war and who is "...permanently and
totally disabled from non-service-connected disability not
the result of the veteran's willful misconduct[.]" 38
U.S.C.A. § 1521 (West 1991). The veteran satisfies the
requirement of serving during a period of war. 38 C.F.R. §
3.2(f) (1998). Therefore, the issue of entitlement to
pension turns on whether he is now found to be permanently
and totally disabled. In this regard, the Court has provided
specific guidance on how a permanent and total disability
rating for pension purposes should be adjudicated. Talley v.
Derwinski, 2 Vet.App. 282 (1992); Roberts v. Derwinski, 2
Vet.App. 387 (1992); Abernathy v. Derwinski, 2 Vet.App. 391
(1992); and Brown v. Derwinski, 2 Vet.App. 444 (1992).
Among the instructions provided in the decisions of the Court
is a requirement that the Board review the assignment of
percentage ratings for each disability identified. In
instances where percentage ratings for one or more of the
veteran's disabilities has not been assigned by the
originating agency, further development is required so that
the Board can undertake the review process set out by the
Court. See Roberts, supra. Additionally, even in cases
where the RO has identified a disability and assigned a
rating, further development may be required in order to
properly apply the rating criteria by which the identified
disability is evaluated.
For instance, in the present case, the RO has assigned a 10
percent rating based primarily on two hospital summary
reports dated October 1997 and July 1998. Review of these
documents show that the earlier hospitalization was the
result of an involuntary commitment by a criminal court. It
is also indicated that the veteran was afforded a battery of
psychological tests and psychiatric evaluation during the
more recent hospitalization; however, the medical records
have not been associated with the claims folder. The Board
believes that the RO should obtain and review the veteran's
complete VA medical records, both inpatient and outpatient,
before determining the appropriate rating to be assigned to
his psychiatric disorder.
Likewise, the Board notes that the current medical evidence
of record contained no objective or medical opinion as to the
veteran's ability to work. While the exact nature of the
veteran's psychiatric condition is not entirely clear, the
evidence of record also reveals that he has been treated for
substance and alcohol abuse two years prior to his VA
hospitalization. In light of the Board's determination that
this claim is well-grounded, the RO should attempt to obtain
and associate these records with the claims folder.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should obtain and associate
with the claims folder all of the
veteran's VA medical records, including
inpatient, outpatient, and mental hygiene
clinic records, from October 1997 to the
present.
2. The veteran should be requested to
provide names, addresses, and approximate
dates of treatment for all health care
providers who have treated him for his
psychiatric disorder since his discharge
from service. Specifically, the veteran
should be asked specifically to provide
information as to his purported
hospitalization for substance/alcohol
abuse rehabilitation. With any necessary
authorization from the veteran, the RO
should attempt to obtain and associate
with the claims file copies of treatment
records identified by the veteran. If no
records can be obtained, the veteran and
his representative should be informed of
the negative results. 38 C.F.R. § 3.159
(1998).
2. Thereafter, the RO should schedule
the veteran for VA general medical and
psychiatric examinations. The
examinations should provide sufficient
detail to rate each identified disability
under applicable rating criteria. The
examiner conducting the psychiatric
evaluation should identify all
psychiatric disorders shown on
examination and discuss the severity of
the symptoms associated with each. A GAF
score for the psychiatric disorders,
under DSM IV, should be provided along
with an explanation of the score's
meaning.
3. The issue of entitlement to pension
benefits should then be considered under
the two-prong test enunciated by the
Court in Talley v. Derwinski, 2 Vet.App.
282 (1992); Roberts v. Derwinski, 2
Vet.App. 387 (1992); and Brown v.
Derwinski, 2 Vet.App. 444 (1992). In
other words, the RO must consider the
"objective" and the "subjective"
standards, including 38 C.F.R. Part 3,
§ 3.321 and Part 4, §§ 4.15 and 4.17
(1998). If the benefit sought remains
denied, the RO should furnish the veteran
and his representative with a
supplemental statement of the case
(SSOC), which includes all pertinent
rating criteria, including any criteria
that were revised during the pendency of
the veteran's claim. The veteran and his
representative should then be given an
opportunity to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
SANDRA L. SMITH
Acting Member, Board of Veterans' Appeals